Book Review - All Rise: The High Ambitions of the International Criminal Court and the Harsh Reality

All Rise: The high ambitions of the International Criminal Court and the harsh reality by Tjitske Lingsma. Utrecht: Ipso Facto 2017. 448 pp, €29.95 paperback 978-90-77386-20-0, $17.75 e-book

The adoption of the Rome Statute in July 1998 paved the way for the establishment of the International Criminal Court, which opened its doors in 2003. The high expectations of what the court would accomplish are clear from the statements made at the time of the Statute’s adoption. The UN Secretary General of the time, Kofi Annan, called the establishment of the Court “a gift of hope to future generations, and a giant step forward in the march towards universal human rights and the rule of law.” The chair of the drafting committee believed that “the international community had shown that it would not stand by silently watching genocide being committed”, while another committee member said that the statute constituted “a new page of history with a message that it would never again tolerate impunity”.

Twenty years after these hopeful words, Dutch journalist Tjitske Lingsma takes stock of the Court’s accomplishments in her book All Rise. As the book’s subtitle reveals, the fifteen years in which the Court has been operational have seen continuous clashes between ideals and realities. These clashes become visible in Lingsma’s meticulous documentation of the day-to-day proceedings in four major ‘situations’ before the Court: Kenya, the Democratic Republic of the Congo, the Central African Republic, and Ivory Coast. An additional chapter discusses attempts to bring the Libyan case to the Court and several thematic chapters delve into issues related to witness protection and victim participation. Taken together, the chapters provide a unique glimpse into the day-to-day workings of the world’s only permanent international court established to prosecute the gravest of international crimes.

Although primarily a journalistic work, the book will also be of major interest to scholars in international relations and international law. From the perspective of the author’s seat in the public gallery, readers can see how international law is being put from theory into practice. This invites deeper reflection on some of the complex questions around the Court’s ambitious mission and modest accomplishments. Two challenges to the delivery of global justice to victims of international crimes become particularly apparent in the book.

First, the book painfully points out the difficulty of bridging the distance between the courtroom in The Hague and crime scenes located far away from it. To investigate crimes in the countries where they occur, the prosecution often has to rely on local contacts to gather evidence. Reliance on these intermediaries caused problems in the trial against Thomas Lubanga, which had to be halted when it turned out that an intermediary had been instructing witnesses on what to testify. A sizable and well-orchestrated scheme to bribe witnesses and falsify statements also surfaced in the case against Jean Pierre Bemba. The former Congolese warlord himself was heavily involved in the scheme which he managed from his prison cell in The Hague. The scheme was discovered and did not stand in the way of completing the case against Bemba, who was convicted for crimes against humanity and war crimes in 2016.

But the impact of witness manipulation had a much more dramatic impact on the Kenyan case. There, bribery and intimidation of witnesses was so grave that it severely eroded the prosecution’s evidence base. This eventually left the prosecution no choice but to withdraw charges against six suspects of crimes against humanity, including the Kenyan President and Vice President. Although the prosecution issued arrest warrants against those responsible for the fraud, no progress has been made in these cases and the suspects remain at large. Next to the failed case against perpetrators of the Darfur genocide, the Kenyan drama remains one of the court’s greatest setbacks to date. It also forms a harsh reminder of the court’s dependence on power dynamics in the states where it intends to apply the law. Individuals who hold power continue to enjoy impunity for mass atrocities.

A second issue on which the book invites reflection is the centrality of perpetrators in the day-to-day workings of the court. Despite the ICC’s commitment to victim participation, criminal justice remains a perpetrator-centered practice by its very nature. This becomes clear from Lingsma’s observations from the public gallery: the Ocampo six, Bemba, Lubanga and Ble Goude are the protagonists and their battles with the prosecution are at the heart of the court’s work. The court’s limited achievements in delivering reparations to victims forms another reminder, which is described in one of the book’s thematic chapters.

In the courtroom victims are only present as witnesses. They give their testimonies from behind a curtain while appearing on video screen on which their faces and voices are distorted for their safety. Victims are not watching the proceedings from the public gallery and it is unlikely that they are following the ICC’s website in their home areas. Apart from historic moments such as trial openings and verdicts, the public gallery is remarkably quiet in general. Throughout the book, only a handful of people – journalists, political activists and relatives of the accused – take seats next to Lingsma to observe the proceedings. It begs the question of who the court is for.

In the book’s closing chapter, the author assembles the scorecard of the Court after fifteen years of work: four convictions, nine failed cases for a total price of 1.5 billion euros. While there are some modest signs of positive impact, Lingsma’s years of observation has led her to be pessimistic about the court’s meagre results. The author rightfully questions the strategic direction of the ICC’s first prosecutor, whose brinkmanship is widely believed to have damaged the institution’s reputation and diminished its constituency. A more thorough discussion of the Ugandan and Sudanese cases would have strengthened the book’s conclusions in this regard, but the overall picture is still firmly positioned in the book’s rich documentation of other key cases.

The high hopes of those who fought for the establishment of the Court twenty years ago, then, have not materialized. Today, the international community still stands by as the gravest of crimes are being committed in Syria, Myanmar and Yemen among other places. Suffering continues, people are victimized by international crimes every day, and impunity seems to be the rule not the exception. Does that mean that the Court has not changed anything?

During the inauguration of the ICC’s new premises two years ago, the current UN Secretary General Ban Ki Moon spoke about the impact of the Court. Moving past the price tag and the number of cases and sentences the court had delivered, he emphasized that the Court had brought about a change in the way people think about international crimes. When grave crimes occur, he argued, “people now want and expect that the perpetrators will be brought to justice. The International Criminal Court has been instrumental in bringing about this change in attitude.”

In the ongoing struggle towards universal respect for human rights, the Court has thus by no means been an end point. It is an instrument that can succeed or fail depending on political tides and its leadership’s ability to maneuver the minefield of international politics. Looking back, our expectation that the court could be immune to political manipulation and that its establishment marked some sort of ‘end of history’ may then have mainly been a sign of our own naivety. After fifteen years of putting principles into practice, we should calibrate our expectations but not lose hope for the ICC altogether. With a more realistic outlook on the possibilities and limitations of global justice and a more politically competent prosecutor in place, this unique instrument for the protection of human rights can only become stronger.

Saskia Baas is an expert on transitional justice and has done research on civil war violence in Sudan and Syria.

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